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Robert Digiacomo v. Wal-Mart Stores Inc

July 7, 2011


On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1651-08.

Per curiam.


Submitted March 8, 2011 - Decided

Before Judges Wefing andPayne.

In December 1996, thirty-five bad checks bearing the name of Robert DiGiacomo were passed at a Wal-Mart store in Hammonton. In August 2001, Wal-Mart filed a criminal complaint against DiGiacomo, asserting a violation of the bad check statute, N.J.S.A. 2C:21-5, a charge that was amended by the Hammonton police to third-degree theft by deception, N.J.S.A. 2C:20-4. The matter was referred to a grand jury, and DiGiacomo was indicted in October 2001. However, he was living in Georgia or Florida at the time and was not located. In January 2006, DiGiacomo returned to New Jersey and, on May 24, 2006, he was arrested on a warrant that was issued when he failed to appear for his arraignment. DiGiacomo remained incarcerated until May 30, 2006.

Thereafter, the State's handwriting expert was unable to say with certainty that DiGiacomo had written the bad checks. The expert stated "although some similarities were noted" between DiGiacomo's handwriting and that on the checks, "the absence of significant identifiable or significant eliminating characteristics precluded the suspect from being either identified or eliminated as having authored" the bad checks. As a result, the prosecutor moved for dismissal of the indictment, stating, "[w]hile probable cause existed [for] the issuance of the complaint, subsequent investigation, including expert handwriting analysis rendered the State unable to sustain its burden at trial." The motion was granted on January 2, 2007.

DiGiacomo then filed a suit against Wal-Mart and an unserved former employee, Damon Marshall, the store's assistant manager who had initiated the criminal charges, alleging negligent and intentional conduct constituting malicious prosecution, false arrest, false imprisonment, false detention, deprivation of constitutional rights and infliction of emotional distress.

Wal-Mart moved for summary judgment, which was granted as to claims sounding in negligence. The judge denied summary judgment on the remaining claims, without prejudice, to permit DiGiacomo the opportunity to conduct discovery of Wal-Mart's employees. He did not do so, and a motion to further extend the period for discovery was denied.

Thereafter, in a written opinion dated March 19, 2010, a different judge granted Wal-Mart's second summary judgment motion on the claims of false arrest, false imprisonment, false detention, malicious prosecution, and violation of constitutional rights. The judge determined that DiGiacomo had failed to demonstrate liability on the part of Wal-Mart for false arrest, because his arrest was the result of the legally authorized issuance of a warrant by a judge of the Criminal Part following DiGiacomo's failure to appear at his arraignment on November 27, 2001. Claims of false imprisonment and false detention were likewise unsustainable because they arose as a consequence of DiGiacomo's arrest. The judge granted summary judgment on DiGiacomo's claim of malicious prosecution because he presented no evidence in opposition to Wal-Mart's claim that the criminal case did not terminate in his favor, Wal-Mart had probable cause to institute a criminal action against him, and Wal-Mart did not act out of actual malice. Thus, DiGiacomo failed to establish the elements of a malicious prosecution claim. Additionally, the judge dismissed DiGiacomo's constitutional claims because Wal-Mart was not a state actor.

On appeal, DiGiacomo raises the following issue for our consideration:


Should a party that used false evidence, fictitious names and provided no witnesses or testimony, along with a party that failed to adhere to NJSA & Rules Fair debt collections practices and for filing and contacting the presumed debtor in "non reasonable" time, be found negligent, liable for malicious prosecution and other accounts.

Employing the summary judgment standards set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) and Rule 4:46-2(c), we affirm. In essence, DiGiacomo claims in this matter that, upon receiving a series of bad checks issued by an identity thief on an account held in the name of Robert DiGiacomo, Wal-Mart performed a negligent investigation into the identity of the drawer of the checks, when a more diligent investigation would have disclosed that he was not the drawer. Then, Wal-Mart waited until shortly before the statute of limitations expired to file the criminal complaint that led to DiGiacomo's indictment. Because the State subsequently moved for dismissal of that indictment after determining that its handwriting expert could neither establish nor disprove that DiGiacomo was the drawer of the instruments, he claims that he is entitled to damages for malicious prosecution.

However, to prevail on a claim for malicious prosecution, DiGiacomo was required to prove that (1) a criminal action was instituted by Wal-Mart against him; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorably to him. LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009) (citing Lind v. Schmid, 67 N.J. 255, 262 (1975)). "[E]ach element must be proven, and the absence of any one of these elements is fatal to the successful prosecution of the claim." Ibid. (citing Klesh v. Coddington, 295 N.J. Super. 51, 58 ...

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